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BCI may appeal Chennai writ ruling as foreign firms, SILF like judgment

Mint brings you the latest legal news with Legally India
Mint brings you the latest legal news with Legally India

LI-Mint exclusive: The Bar Council of India (BCI), regulator of the legal profession, has indicated it might appeal against Tuesday’s Madras high court ruling allowing foreign lawyers to visit the country to advise clients on foreign law.

[Click here to read full story in Mint today]

The judgement has caused confusion as it seemed to be in conflict with the Bombay high court’s ruling in the 2009 Lawyer’s Collective case, BCI chairman Ashok Parija said. “The Bombay high court had said there is a total ban on foreign lawyers coming to India. This judgement says fly-in fly-out is possible. To that extent we might have some difficulty with this judgement,” said Parija.

BCI has called a meeting on 3 March to discuss the judgements and appeal to the Supreme Court to resolve any conflict in the rulings. “Maybe we will file (an) SLP (special leave petition) so that the conflict between judgements is resolved,” he said.

The Bombay high court ruled in December 2009 that foreign lawyers could not practice in India as they were not enrolled under the Advocates Act, 1961.

British law firm Clifford Chance LLP, one of the parties before the Madras high court, said it was also contemplating an appeal as some issues had been left unclarified. “We are pleased that the court has upheld the rights of foreign lawyers to visit clients in India to advise them on non-Indian law issues. However, we think it is unclear whether the court is saying that foreign lawyers cannot otherwise practise non-Indian law in India,” the firm said in a statement.

“If that is the case, we consider it to be unnecessarily and unreasonably restrictive and we believe would be a misreading of the Advocates Act, which we do not believe was ever intended to address the question of the practice of non-Indian Law. We will be considering whether an appeal to get clarity on these points is appropriate.” The judgement had not touched upon Indian firms being allowed to collaborate with foreign firms, the firm said. “What also remains to be addressed by the Indian authorities is the bigger issue of collaboration and partnership between Indian lawyers and international law firms, and of international firms advising on Indian as well as non-Indian law,” it said.

Clifford Chance ended an exclusive business referral relationship, also known as a “best friend” relationship, with Mumbai-headquartered AZB and Partners last January.

A London-based lawyer, who didn’t want to be identified because he’s not authorized to speak to the media, said, “I don’t see any conflict between both the judgements. The (Madras high court) judge has analysed the ratio of the Bombay high court judgement.”

Chris Parsons, India group chairman of the UK-based Herbert Smith LLP, thought there may be confusion regarding temporary visits by foreign lawyers. “I think it was a pragmatic judgement but I am really pleased they’ve clarified the fly-in, fly-out,” he said. “Some might argue there’s an anomaly—if you can support fly-in, fly-out, why can’t you have an office here to advise on foreign law? I can see it’s a bit of an anomaly.”

The judgement maintains the status quo, said Lalit Bhasin, chairman of the Society of Indian Law Firms (SILF).

“It’s a very balanced judgement,” he said. “It has dealt with the issues of entry of foreign lawyers and it says very clearly that they cannot practice in India. But at the same time it has upheld their rights to fly-in, fly-out. In SILF, we have taken this very stand and that stand has been fully upheld by the high court. We said foreign lawyers cannot practice here. But we said lawyers can come with their clients for isolated arbitration, transactions and other such work.”

“It does not legitimise anything. No one had stopped them from coming in here with clients. Actually, we Indian lawyers also go abroad with our clients. That has been happening for decades,” Bhasin added.

This article first appeared in Mint, which has an exclusive content partnership with Legally India features the latest legal news and analysis every Friday fortnight.

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